Democratic accountability of delegation of such power is guaranteed by parliamentary sovereignty
Manitoba’s Court of Queen’s Bench has ruled that the statutory delegation to the chief public health officer (CPHO) found in s. 67 of The Public Health Act, C.C.S.M. c.P210 (PHA) is a constitutional and democratically legitimate means of ensuring that the public health measures addressing the pandemic are proposed by a qualified medical expert.
In Gateway Bible Baptist Church et al. v. Manitoba et al., the applicants – churches, church congregants and Manitoba citizens – challenge the constitutionality of s. 67 of the PHA. They claim that the overly broad delegations of legislative power to the CPHO, an unelected government official, is unconstitutional and an undemocratic delegation of legislative power. They further claim that it deprives the citizens of their right to participate in the formation of law and policy, deprive courts of their ability to review executive action, and violate the “legitimate sphere of activity” of each branch of government.
In response, Manitoba asserts that the democratic principle invoked by the applicants is assured by parliamentary sovereignty. The province said that not only is it the will of the elected assembly to delegate the powers contemplated in the PHA, but also legislature retains at any time plenary powers to limit, alter or revoke the delegated power it conferred. They further assert that the delegated power is never unbound or unrestrained, as the CPHO cannot exceed the limits of the statutory power in s. 67 nor can they make orders that violate the Charter.
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The trial judge agreed with Manitoba and ruled that s. 67 of the PHA was constitutional. Democratic accountability is guaranteed by parliamentary sovereignty and is clearly assured when the delegation in question was enacted by a sovereign legislature, said the judge. Legislature can not only amend, expand, constrain or altogether eliminate the delegation at any time, but also choose to override any subordinate regulation, rule, order or decision, said the judge.
The delegation of legislative power is also consistent with the realities of the modern regulatory state in Canada, said the judge. “In the case of the CPHO, there was an obvious need for medical expertise and prompt, flexible responses during a public health emergency,” said the judge, which is further highlighted by the pandemic.
Lastly, the delegation does not offend or compromise the unwritten constitutional principles of democracy, rule of law and the separation of powers, said the judge. Any act of the CPHO that may be arbitrary, in excess of authority, or a violation of Charter rights may be addressed by judicial review.
